Bombay High Court
Nitin Meghraj Gaikwad vs Marathwada Shikshan Prasarak Mandal ... on 25 March, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:9622-DB
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11188 OF 2024
Atul s/o Vasantrao Warangule
Age 43 years, Occu. Service,
R/o Mitra Nagar, KSK College Road,
Beed, Taluka & District Beed ... PETITIONER
VERSUS
1) Marathwada Shikshan Prasarak
Mandal, through its Administrative
Officer, Devgiri college Campus,
Railway Station Road, Aurangabad,
Tal. & Dist. Aurangabad
2) Yashwantrao Chavan Institute of
Polytechnic, Beed, Near Law College,
Vidhya Nagari, Barshi Road,
Beed, Tq. & Dist. Beed,
Through its Principal
3) All India Council for Technical Education,
JNU Campus, Nelson Mandela Marg,
Vasant Kunj, New Delhi - 110 070
4) Director of Technical Education,
Maharashtra State, Mumbai
5) Maharashtra State Board of Technical
Education, Mumbai. ... RESPONDENTS
.......
Mr. Subodh P. Shah, Advocate holding for
Mr. D.A. Madke, Advocate for petitioner
Mr. N.B. Khandare, Senior Counsel with
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 2 ::
Mr. D.J. Choudhari, Advocate for R.No.1 and 2
Mr. C.V. Dharurkar, Advocate for R.No.3.
Mr. S.R. Yadav Lonikar, A.G.P. for R.No.4.
Mr. S.S. Jadhavar, Advocate for R.No.5
.......
WITH
WRIT PETITION NO.11176 OF 2024
Nitin s/o Meghraj Gaikwad
Age 38 years, occ. Service,
R/o champavati Nagar, Barshi Road,
Beed, Tal. & Dist. Beed ... PETITIONER
VERSUS
1) Marathwada Shikshan Prasarak
Mandal, through its Administrative
Officer, Devgiri college Campus,
Railway Station Road, Aurangabad,
Tal. & Dist. Aurangabad
2) Yashwantrao Chavan Institute of
Polytechnic, Beed, Near Law College,
Vidhya Nagari, Barshi Road,
Beed, Tq. & Dist. Beed,
Through its Principal
3) All India Council for Technical Education,
JNU Campus, Nelson Mandela Marg,
Vasant Kunj, New Delhi - 110 070
4) Director of Technical Education,
Maharashtra State, Mumbai
5) Maharashtra State Board of Technical
Education, Mumbai. ... RESPONDENTS
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 3 ::
.......
Mr. Subodh P. Shah, Advocate holding for
Mr. D.A. Madke, Advocate for petitioner
Mr. N.B. Khandare, Senior Counsel with
Mr. D.J. Choudhari, Advocate for R.No.1 and 2
Mr. C.V. Dharurkar, Advocate for R.No.3.
Mr. S.R. Yadav Lonikar, A.G.P. for R.No.4.
Mr. S.S. Jadhavar, Advocate for R.No.5
.......
WITH
WRIT PETITION NO.8640 OF 2024
Marathwada Shikshan Prasarak Mandal
Through Administrative Officer,
Deogiri College Campus,
Railway Station Road,
Chhatrapati Sambhajinagar ... PETITIONER
VERSUS
1) Atul s/o Vasantrao Warangule
Age 43 years, Occu. Service,
R/o Mitra Nagar, KSK College Road,
Beed, Tq. & Dist. Beed
2) The Director of Technical Education,
Maharashtra State, Mumbai
3) The Joint Director,
Technical Education, Regional Office,
Chhatrapati Sambhajinagar, Tq. &
Dist. Chhatrapati Sambhajinagar
4) The Deputy Secretary and
Appellate Authority,
Maharashtra State Board of Technical
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 4 ::
Education, Regional Office,
Chhatrapati Sambhajinagar, Tq. &
Dist. Chhatrapati Sambhajinagar ... RESPONDENTS
.......
Mr. N.B. Khandare, Senior Counsel with
Mr. D.J. Choudhari, Advocate for petitioner
Mr. Subodh P. Shah, Advocate holding for
Mr. D.A. Madke, Advocate for R.No.1.
Mr. S.R. Yadav Lonikar, A.G.P. for R.No.2 & 3.
Mr. S.S. Jadhavar, Advocate for R.No.4
.......
CORAM : R.G. AVACHAT AND
SANDIPKUMAR C. MORE, JJ.
DATE : 25th MARCH, 2025
ORAL JUDGMENT (PER R.G. AVACHAT, J.) :
Rule. Rule made returnable forthwith. With the
consent of learned counsel for the parties, heard finally.
2. This group of three Writ Petitions, under Article 226
of the Constitution of India, is being decided by this common
judgment, since common questions of facts and law arise
therein. Two of the three petitions (No.11188/2024 and
11176/2024) have been preferred by the employees of the
respondent management, which has preferred the third Writ
Petition (No.8640/2024).
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 5 ::
3. The petitioners/ employees seek the following main
reliefs :--
A) The Hon'ble High Court may be pleased to issue an
appropriate writ, order or direction in the nature of writ and
thereby direct the respondent Nos.1 and 2 :
i) Let the petitioner resume his duties at the respondent
No.2 Institute at Beed and
ii) To pay his salary according to the recommendations
made by the 7th Central Pay Commission and
iii) Also pay the arrears of difference in salary actually
paid to him and the salary to which the petitioner
was entitled along with interest @ 12% p.a.
4. The petitioners/ employees had preferred two
independent Writ Petitions, (No.9346 and 9345/2023). This
Court, passed following order therein on 10/11/2023:
"2. The petitioners who were serving with the
respondent no. 8 college run by the respondent
no.6- management are aggrieved by the fact that,
they were served with back dated relieving orders
dated 30-06-2023. They seem to have submitted
applications with the respondent no. 8 who is the
principal of the college and chairman of the
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 6 ::
grievance redressal committee, putting up a
grievance, however, till date no action has been
taken to redress their grievances.
3. Keeping open all the issues, we direct the
respondent no. 9 who is president of the grievance
redressal committee at the institutional level to
convene meeting and pass appropriate orders on the
petitioners' grievances as expeditiously as possible
and in any case within four weeks."
5. As such, the grievance was taken up first by the
Local Grievance Redressal Committee (GRC). The
petitioners/ employees having been unsuccessful before the
said Committee, preferred the appeals before the Grievance
Redressal Appellate Committee (GRAC for short). After
hearing the parties, the GRAC passed the following order :
"foHkkxh; Lrjkojhy rdzkj fuokj.k vfiyh; lferhps
fujh{k.k
01- izfroknh ;kaP;k ls e/khy ekfgrhps voyksdu dsys
vlrk Jh- okjaxqGs ;kaph vf/kO;k[;krk baxzth ;k inkoj
dj.;kr vkysyh fu;qDrh gh fuoM lferhdMwu >kysyh ulwu
rkRiqjR;k Lo#ikr o Bksl osrukoj dsyy s h vlY;kps EgVys
vkgs- R;keqGs R;kauh osruk ckcrP;k dsysY;k ekx.;k ekU;
djrk ;s.kkj ukgh vls uewn dsys vkgs- rlsp laLFkk
Lrjkojkhy rdzkj fuokj.k lferhus Jh- okjaxqGs ;kaP;k ekx.;k
QsVkGwu ykoY;kps fnlwu ;srs- ijarq R;ki`"B;FkZ R;kauk Bksl
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 7 ::
osru vnk dsY;kps cWad LVsVesaV vFkok brj dkxni=s iqjkok
Eg.kwu lknj dsys ulY;kps fnlwu ;srs-
02- vfiydkj ;kauh ekaMysys Eg.k.ks o lknj dsysY;k
dkxni=kps voyksdu dsys vlrk R;kauk O;oLFkkiukus R;kaps
dk;kZy;hu vkns'k dzekad 616] fn- 08-09-2009 vUo;s
fu;qDrh vkns'k fnysys vlwu R;ke/;s osruJs.khpk mYys[k
vlY;kps fnlwu ;srs- rlsp Jh- okjaxqGs ;kauh lknj dsysY;k
R;kaP;k cWad [kkR;kP;k LVsVesaVuqlkj R;kaP;k [kkR;koj laLFksus
lgkO;k osru vk;ksxkP;k osruJs.kh uqlkj lIVsacj 2009 iklwu
osru fnY;kps dkxni=ko#u fnlwu ;srs-
03- Jh- vrqy olarjko okjaxqGs ;kaph fu;qDrh laLFkk
dzekad 1158& Yashwantrao Chavan Institute Of
Polytechnic, Beed ;k infodk vH;kldzekrhy
vf/kO;k[;krk baxzth ;k inkoj dsysyh vlwu lnj inkph
'kS{kf.kd vgZrk R;kaaP;kdMs vkgs- ijarq R;kaph cnyh nsofxjh
bfULVV;wV vkWQ baftfuvjhax vWaM eWustesasV LVMht]
vkSjaxkckn ;k inoh vH;kldzekrhy vf/kO;k[;krk baxzth
inkoj dsyh vkgs- lnjhy inkdjhrk vko';d vlysyh
vgZrk R;kaP;kdMs ulY;kps R;kauh lkafxrys vkgs- infodk
vH;kldzekrhy vf/kO;k[;krk baxzth ;k inkph 'kS{kf.kd
vgZrk o inoh vH;kldzekrhy vf/kO;k[;krk baxzth ;k
inkph 'kS{kf.kd vgZrk ;ke/;s fHkUurk vlY;kps fnlwu ;srs-
04- Jh- okjaxqGs ;kaph cnyh fn- 30-06-2024 jksth
dj.;kr vkyh vkgs ijarq lnjhy cnyh cnyh vkns'k gs
lacaf/krkl fnukad 19-07-2024 jksth bZesy+}kjs izkIr >kY;kps
dkxni=ko#u fnlwu ;srs-
05 infodk vH;kldzekrhy vf/kO;k[;krk baxzth ;k
inkph 'kS{kf.kd vgZrk o inoh vH;kldzekrhy
vf/kO;k[;krk baxzth ;k inkph vgZrk osxosxGh vlY;kus
infodk laLFksrwu inoh laLFksr cnyh dj.ks fu;ekl /k#u
ulY;kps lferhph /kkj.kk vkgs-
06- Jh- okjaxqGs ;kauh laLFksdMs AICTE P;k fu;ekizek.ks
osru o osrukrhy Qjd ns.;kckcrph ekx.kh laLFksdMs GRC
vtkZiqohZ dsY;kps fnlwu ;sr ukgh- ijarq laLFkk Lrjkojhy
lferhdMs lknj dsysY;k fn- 20-7-2023 P;k rdzkjhr
ekx.kh dsY;kps fnlwu ;srs-
07- laLFkk dzekad 1158@Yashwantrao Chavan
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 8 ::
Institute Of Polytechnic, Beed ;k laLFksus egkjk"Vª jkT;
ra=f'k{k.k eaMGkP;k fu;ekuqlkj f'k{kdh; inkl eaMGkph
ekU;rk ?ks.ks vko';d vkgs- ijarq lnjhy laLFksus f'k{kdh;
inkojhy f'k{kdkl egkjk"Vª jkT; ra=f'k{k.k eaMGkph ekU;rk
(Staff Approval) ?ksryh ulY;kps fnlwu ;srs-
vfiydkj rlsp izfroknh ;kaps Eg.k.ks fopkjkr ?ks Åu
xBhr vfiy lferh [kkyhy izek.ks fu.kZ; nsr vkgs-
Jh- vrqy olarjko okjaxqGs ;kaph laLFkk dzekad
1158@Yashwantrao Chavan Institute Of Polytechnic,
Beed ;k laLFksr vf/kO;k[;krk baxzth ;k inkoj laLFksus
dk;kZy;hu vkns'k nsÅu osruJs.kh izek.ks fu;qDrh fnY;kps
fnlwu ;srs] rlsp laLFksus vnk dsysY;k osrukP;k
fooj.ki=kuqlkj R;kauk lgkO;k osru vk;ksxkP;k osruJs.kh
izek.ks osru vnk dsY;kps rlsp Jh- okjaxqGs ;kauh lknj
dsysY;k cWad LVsVesaVo#u fnlwu ;srs- ijarq R;kauk ns.;kr
vkysys osru gs fu;ekizek.ks ulY;kus Fkdhr osrukrhy Qjd
ns.;kl ik= vkgsr-
rlsp R;kaph cnyh gh infodk vH;kldze laLFksrwu
inoh vH;kldze laLFksr dsY;kps fnlwu ;sr vlwu infodk
vH;kldze o inoh vH;kldzekrhy vf/kO;k[;krk baxzth ;k
inkoj fu;qDrhP;k 'kS{kf.kd vgZrse/;s Qjd vlY;kus lnj
cnyh fu;ekl /k#u ulY;kps fnlwu ;srs-"
So far as regards petitioner Nitin Gaikwad is
concerned, the GRAC upheld the order of his transfer.
6. This is how the Writ Petitioners have now been
before us and the petition by the management assailing the
order of the GRAC.
7. So as to avoid the repetitions, we do not propose to
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 9 ::
advert to the submissions of the learned Advocates appearing
for the petitioners/ employees since those would be our
reasons in support of the judgment and order.
8. Learned Senior Advocate for the management
would submit that, the appointment of the petitioners was not
in accordance with law. No advertisement was published in
the daily, inviting applications. The appointment of the
petitioners/ employees was on temporary and contractual
basis without adopting selection process. The selection
committee required to be constituted, was in fact not
constituted to conduct recruitment process. Their
appointments have not been approved by the Maharashtra
State Board for Technical Education (MSBTE), competent
authority. The appointment was on consolidated and fixed
payment of salary. He adverted our attention to AICTE
Regulations to be followed by each educational institute for
recruitment of its staff (teaching and non-teaching staff). He
would further submit that, the petitioners are not governed by
AICTE (All India Council for Technical Education). Had their
appointments been lawful, they would at the most be governed
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 10 ::
by the rules and regulations of MSBTE, M.S., Mumbai, but
since their appointments are illegal since its inception and non
est, they are not entitled to any kind of monetary reliefs such
as salary in terms of Pay Commission recommendations.
9. Certain documents were brought to our notice. He
would further submit that, one of the petitioners/ employee
appears to have relied on forged appointment order. The
Appellate Committee relied on it without there being original.
He would further submit that, the Appellate Committee did not
at all consider the case of the management. According to him,
the petitioners indulged in misbehaviour. As against the
petitioner Shri Atul Warangule, a complaint was received from
a girl student. Her parents did not wish to take the matter to
logical end. The management, however, conducted a discreet
enquiry and Shri Warangule was found to have indulged in
misbehaviour. Both the petitioners, in spite of having been
transferred, did not join the transferred place. This itself
amounts to misconduct on their part. They indulged in
manipulating bio-metric attendance procedure. The learned
Senior Advocate concedes to the position that if the petitioners/
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 11 ::
employees were found to have been duly appointed in terms of
Rules and Regulations approved by MSBTE, they would be
entitled for the pay in terms of 5 th, 6th and 7th Pay Commission
recommendations.
10. The learned Senior Advocate would further submit
that, one of the petitioners in fact was appointed in the year
2012. He brought to our notice the Bank statement of the
petitioner Shri Warangule to point out that, in the year 2009,
he received salary to the tune of Rs.4000/- from some other
educational institute. On the question of transfer, he would
submit that, the petitioners have been indulged in
misbehaviour and hence, are not entitled to the relief. The
learned Senior Advocate would submit that the petition filed by
the management is a complete reply to the case of the
petitioners/ employees. He took us through all the documents
relied on in chronological order. He would submit that, a
mischief was played by the respondents/ employees and
certain documents which were uploaded on the website of the
management/ institute have been obtained by them.
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 12 ::
According to him, one of the Clerks in the office
might have joined hands with these petitioners/ employees
and, therefore, those documents indicating them to have been
given notices to attend certain functions at the College
premises, were there. He would submit that, when the
petitioners were in fact relieved on 30 June itself, they were
expected/ supposed to join their transferred place and
thereafter they should have approached the Court of law to
raise their grievance. He would further submit that, the
Principals of the Colleges to which these petitioners were
transferred, had made a request that there was shortage of
teaching staff of concerned subjects and, therefore, services of
both of them were required. He would submit that the transfer
order was plain and simple, and, therefore, no reasons have
been given therein. No malafides could be attributed to the
management in regard to their transfers. These petitioners
were not on duty for little over two and half years. They would,
therefore, not be entitled to any monetary claim for the said
period. While they approached this Court by filing writ
Petitions No.9345/2023 and 9346/2023, this Court did not
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 13 ::
grant any interim relief. He would further submit that, the
management had called upon the petitioners to furnish certain
documents. He relied on the requisition dated 18/4/2024. In
response thereto, the petitioner Shri Warangule only submitted
three documents. He did not place before the management
any order of his appointment. He would further submit that,
unless the petitioners establish to have been duly appointed to
the post, then and then only they would be entitled to the
benefits attached to the very post. He would further submit
that, the transfer is an incident of appointment/ service and
judicial review thereagainst should not be made readily unless
lack of bonafides are shown.
11. The learned Senior Advocate relied on the
following authorities to buttress his submissions.
(1) Writ Petition No.14395/2019 (Bhartiya Kamgar Sena &
anr. Vs. State of Maharashtra & ors. with companion
petitions, decided on 3/3/2025
(2) State of Manipur & ors. Vs. Y. Token Singh & ors.
(2007) 5 SCC 65
(3) State of Orissa & anr. Vs. Mamata Mohanty
(2011) 3 SCC 436
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 14 ::
(4) Kusheshwar Prasad Singh Vs. State of Bihar & ors.
(2007) 11 SCC 447
(5) Talat Shikshan Mandal & anr. Vs. Aqueela Bano
Mohammad Moosa & ors. [2009 SCC OnLine Bom 1131]
12. We have considered the submissions advanced.
Perused all the documents relied on. This Court is not sitting
in appeal against the order passed by the GRAC. The
petitions being under Article 226 of the Constitution of India,
even we are not in agreement with some of the observations in
operative order passed by the Appellate Committee, the
petitioners would still be granted relief if they are found to be
entitled thereto.
13. Both these petitioners/ employees have been
serving with the respondent/ management since 2009 and
2011 respectively. An attempt was made to point out from the
Bank Account statement of the petitioner Shri Warangule that
he received salary from two different educational institutes.
The fact is, however, that, both the said institutes were the
sister concerns working under the very management. The
learned Senior Advocate, on instructions, came around to
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 15 ::
concede the said position. As such, we have no hesitation to
observe that both these petitioners/ employees have been
serving with the management - petitioner institute (Writ
Petition No.8640/2024) since then respectively. The learned
Senior Advocate was candid enough to concede that if the
petitioners/ employees were duly appointed by following the
process of law, then they would be entitled for the salary
benefits in terms of the Pay Commission recommendations.
This submission curtails our reasons.
14. So far as regards both the petitioners are
concerned, we do not have their original appointment orders.
As regards other petitioner namely Shri Nitin Gaikwad is
concerned, learned Advocate for him placed on record copy of
the advertisement indicating the applications were invited for
the teaching and non-teaching staff, which were to be
submitted on or before 23/6/2011. When we called upon the
representative of the management to explain about this
document, no counter thereto was submitted in that regard.
15. There are host of documents to indicate the
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 16 ::
management has represented before the Government and
other authorities that they have appointed these petitioners by
following due process of law. They were shown to have been
paid salary in terms of 5th Pay Commission recommendations.
The documents at Page Nos.38 to 41 of Writ Petition
No.11188/2024 are the documents submitted to the Fees
Regulatory Authorities (FRA) for the year 2016-2017 to 2021.
Then comes another document at Page 42, indicating these
petitioners/ employees to have been regularly appointed and
their appointment has been approved. According to us, by
representing such status before the concerned authority would
nothing short of mischief (so to say committed by the
management, if they want to say that the petitioners/
employees have not been duly appointed by following the
prescribed procedure). One another document was brought to
our notice indicating the management had directed the Bank in
the year 2011 to credit the amount in the Bank Account of
these employees/ petitioners salary in terms of 6 th Pay
Commission recommendations. This makes all the difference.
If at all the appointments of these petitioners have not been
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 17 ::
made by following due procedure, the management shall
blame to itself. These petitioners have been admittedly
serving with the management since 2009 and 2011. After a
gap of 16-17 years, we are not inclined to unsettle the position.
It is true that in the case of Y. Token (supra), the Apex Court
has observed :
16. The offers of appointment issued in favour of the
respondents herein were cancelled inter alia on the premise
that the same had been done without the knowledge of the
Revenue Department of the State. No records therefor were
available with the State. As noticed hereinbefore, an inquiry
had been made wherein the said Shri Tayeng, the then
Commissioner of Revenue stated that no such appointment
had been made to his knowledge. The State proceeded on the
said basis. The offers of appointment were cancelled not on
the ground that some irregularities had been committed in the
process of recruitment but on the ground that they had been
non-est in the eye of law. The purported appointment letters
were fake ones. They were not issued by any authority
competent therefor.
18. Moreover, it was for the respondents who had filed the
writ petitions to prove existence of legal right in their favour.
They had inter alia prayed for issuance of a writ of or in the
nature of mandamus. It was, thus, for them to establish
existence of a legal right in their favour and a corresponding
legal duty in the respondents to continue to be employed.
With a view to establish their legal rights to enable the High
Court to issue a writ of mandamus, the respondents were
obligated to establish that the appointments had been made
upon following the constitutional mandate adumbrated in
Articles 14 and 16 of the Constitution of India. They have
not been able to show that any advertisement had been issued
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 18 ::
inviting applications from eligible candidates to fill up the
said posts. It has also not been shown that the vacancies had
been notified to the employment exchange.
21. The appointing authority, in absence of any delegation
of power having been made in that behalf, was the State
Government. The Government Order dated 12.01.1998 did
not delegate the power of appointment to the Commissioner.
He, therefore, was wholly incompetent to issue the
appointment letters.
23. We, as noticed hereinbefore, do not know as to under
what circumstances the orders of appointments were issued.
25. In Shrilekha Vidyarthi (supra), this Court was dealing
with a question in regard to continuance of the Law Officers.
The question which arose herein was not raised. It was held:
"34. In our opinion, the wide sweep of Article 14
undoubtedly takes within its fold the impugned
circular issued by the State of U.P. in exercise of
its executive power, irrespective of the precise
nature of appointment of the Government Counsel
in the districts and the other rights, contractual or
statutory, which the appointees may have. It is for
this reason that we base our decision on the
ground that independent of any statutory right,
available to the appointees, and assuming for the
purpose of this case that the rights flow only from
the contract of appointment, the impugned
circular, issued in exercise of the executive power
of the State, must satisfy Article 14 of the
Constitution and if it is shown to be arbitrary, it
must be struck down. However, we have referred
to certain provisions relating to initial
appointment, termination or renewal of tenure to
indicate that the action is controlled at least by
settled guidelines, followed by the State of U.P.,
for a long time. This too is relevant for deciding
the question of arbitrariness alleged in the present
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 19 ::
case.
35. It is now too well settled that every State
action, in order to survive, must not be susceptible
to the vice of arbitrariness which is the crux of
Article 14 of the Constitution and basic to the rule
of law, the system which governs us. Arbitrariness
is the very negation of the rule of law. Satisfaction
of this basic test in every State action is sine qua
non to its validity and in this respect, the State
cannot claim comparison with a private individual
even in the field of contract. This distinction
between the State and a private individual in the
field of contract has to be borne in the mind."
31. In Kendriya Vidyalaya Sangathan (supra), it was held:
"It is clear that if after the termination of services
of the said Dr. K.C. Rakesh, the orders of
appointment are issued, such orders are not valid.
If such appointment orders are a nullity, the
question of observance of principles of natural
justice would not arise"
16. While in case of Mamata Mohanty (supra), the
Apex Court observed :-
35. At one time this Court had been of the view that calling
the names from Employment Exchange would curb to certain
extent the menace of nepotism and corruption in public
employment. But, later on, came to the conclusion that some
appropriate method consistent with the requirements of
Article 16 should be followed. In other words there must be a
notice published in the appropriate manner calling for
applications and all those who apply in response thereto
Writ Petition No.11188/2024 with
8640/2024 & 11176/2024
:: 20 ::
should be considered fairly. Even if the names of candidates
are requisitioned from Employment Exchange, in addition
thereto it is mandatory on the part of the employer to invite
applications from all eligible candidates from the open
market by advertising the vacancies in newspapers having
wide circulation or by announcement in Radio and Television
as merely calling the names from the Employment Exchange
does not meet the requirement of the said Article of the
Constitution. (Vide: Delhi Development Horticulture
Employees' Union v. Delhi Administration, Delhi & Ors. AIR
1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors.,
AIR 1992 SC 2130; Excise Superintendent Malkapatnam,
Krishna District, A.P. V. K.B.N. Visweshwara Rao &ors.,
(1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi
Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar
Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC
2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR
2006 SC 2319; Telecom District Manager & Ors. v. Keshab
Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan
Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh
& Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
36. Therefore, it is a settled legal proposition that no
person can be appointed even on a temporary or ad hoc basis
without inviting applications from all eligible candidates. If
any appointment is made by merely inviting names from the
Employment Exchange or putting a note on the Notice Board
etc. that will not meet the requirement of Articles 14 and 16
of the Constitution. Such a course violates the mandates of
Articles 14 and 16 of the Constitution of India as it deprives
the candidates who are eligible for the post, from being
considered. A person employed in violation of these
provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance of the
said Constitutional requirement is to be fulfilled. The equality
clause enshrined in Article 16 requires that every such
appointment be made by an open advertisement as to enable
all eligible persons to compete on merit.
37. It is a settled legal proposition that if an order is bad in
Writ Petition No.11188/2024 with
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its inception, it does not get sanctified at a later stage. A
subsequent action/development cannot validate an action
which was not lawful at its inception, for the reason that the
illegality strikes at the root of the order. It would be beyond
the competence of any authority to validate such an order. It
would be ironic to permit a person to rely upon a law, in
violation of which he has obtained the benefits. If an order at
the initial stage is bad in law, then all further proceedings
consequent thereto will be non est and have to be necessarily
set aside. A right in law exists only and only when it has a
lawful origin. (vide: Upen Chandra Gogoi v. State of Assam
& Ors., AIR 1998 SC 1289;
17. It needs no mention that, the observations or
findings recorded by the Apex Court are to be read in the
setting of the facts of the respective case. The facts in case of
Y. Token (supra) indicate that the appointment letters were
fake and those were non est in the eye of law. The contention
of the management in that case was upheld by the Apex Court.
When the appointment was on the basis of fake appointment
order, such appointment would necessarily be non est in the
eye of law. So is not the case in hand. The petitioners/
employees have worked with the institute admittedly for little
over 15 years. As was rightly submitted by the learned
Advocate for the petitioners/ employees that it would not lie in
their mouth to turn around and now to say that the
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appointments were not in accordance with law, the
management, for such illegalities, if any, is liable for penal
consequences.
18. In the facts and circumstances, we find the
petitioner Shri Nitin Gaikwad was duly appointed. The
management did not place on record any document, which
must be in its possession, indicating what procedure was
followed for appointing the petitioner Shri Warangale. Even we
accept the case of the management that the appointment was
without following due process of law and was on a
consolidated pay, with the passage of time i.e. after the
petitioners to have continued to serve the management,
unabated, the management now cannot resile from granting
them the benefits of the pay-scale as recommended by the 5 th,
6th and 7th Pay Commission recommendations. More so when
the measurement informed in writing the FRA the petitioners to
have been appointed by due process of law and mere paid
salary in terms of Pay Commission recommendations. It is
made clear that, in the facts and circumstances of this case
only we are observing so. So far as regards monetary benefits
Writ Petition No.11188/2024 with
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to be paid to the petitioners as they have claimed in the
petition, we restrict their claim for a period of three years next
before they first made complaint before the Grievance
Committee, which was mandatory for them to first raise the
grievance as regards their service conditions.
19. Since, in any case, the petitioners are entitled to
receive salary in terms of the Pay Commission
recommendations, we did not dwell at length on the issue as to
whether they were governed by the Rules and Regulations
approved by AICTE or MSBTE. We, however, prima facie find
them to have been governed by the Rules and Regulations
approved by AICTE. We did not accept the contention of the
learned Senior Advocate that for technical education, language
was not the subject. The record contrary to the submissions
made by learned Advocate was pointed out to our notice. Be
that as it may, since the petitioners/ employees are held to be
entitled for pay-scale in terms of Pay Commission
recommendations, and the last one being the
recommendations made by 7th Pay Commission, being in
vogue, we direct the management to pay the petitioners/
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employees salary/ difference of salary in terms of the 7 th Pay
Commission recommendations with effect from the period of
three years next before their presenting the complaint to GRC
i.e. from 12/7/2023.
20. Needless to mention, the right to receive interest
on delayed payment has been recognised as a constitutional
right. A reference in that regard can be made to the Apex
Court judgment in case of S.K. Dua Vs. State of Haryana &
anr. (2008) 3 SCC 44. We, therefore, direct the respondent-
management to pay the arrears of salary to the petitioners with
interest thereon at the rate of 6% p.a. from the date of the
petitions to the date of actual payment. The management shall
continue to pay each month's salary to the petitioners as well.
21. So far as regards question of transfer of both the
petitioners/ employees are concerned, we are conscious of the
fact that Court should not readily interfere with the same.
Although the submission was that there was a discreet enquiry.
The petitioner Shri Warangale was found to have misbehaved,
it appears that, the report of the Discreet Committee has not
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seen the light of the day. No tangible proof of having
conducted the discreet enquiry was placed on record. It is true
that there are documents to indicate that after transfer order
was passed, these employees/ petitioners were informed to
join their respective place of transfer. They did not join there.
During this period, they did not report on duty. They appear to
have reported on duty at their earlier station only. There is no
record to indicate that they were on duty during this period. It
is but natural that while the management was not allowing
them to join and they were transferred, they cannot and they
were not expected to be working at the station at which they
were working before the transfer orders were issued. It is also
true that this Court did not pass any interim order in Writ
Petitions No.9346 and 9345/2023.
22. The record indicates that the petitioners have
raised grievance about having not been paid the salary in
terms of the Pay Commission recommendations and they have
raised number of grievances with the management and
thereafter only the transfer orders have been issued. The
transfer orders are silent to state any reason for their transfer.
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Although the same are said to be plain and simple, we find
those orders lack bonafides. We are, therefore, inclined to
interfere with the transfer orders as well and set aside the
same.
23. It is reiterated that, both the petitioners/ employees
were agitating their grievance and, therefore, the management
transferred them. The reason that there was shortage of
English Teacher was only on paper but nothing to that effect
was shown indicating necessity and shortage of staff serving at
the College at Aurangabad, whereat Shri Warangale has been
transferred. This is one of the reasons for us to set aside his
transfer.
24. For all the aforesaid reasons, the Writ Petition
No.8640/2024 fails. It is dismissed. Rule discharged.
25. Writ Petitions No.11188/2024 and 11176/2024 are
allowed. Transfer of both the petitioners/ employees are
hereby set aside. The respondent- management shall allow
them to resume duties on the post they held before their
transfer. The management shall pay the petitioners/
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employees salary in terms of 7 th Pay Commission
recommendations from the period from 12/7/2023 till date and
shall continue to pay the same. The respondent- management
shall pay interest at the rate of 6% p.a. on the quantum of
arrears of salary from the date of petition to the date of actual
payment. Rule made absolute in above terms.
(SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.)
fmp/-
